What happens if a child was in the car during a Florida DUI?

A DUI arrest with a child in the back seat is frightening for any parent, and the law treats it more seriously than a DUI alone. The good news, if there is any, is that the change is written out clearly in the statute. This page explains exactly what Florida's DUI law adds when a person under 18 was in the vehicle, what it does not add, and how the case moves through the courts in South Florida. For how a DUI is defended overall, see our main DUI defense page.

What does Florida law say about a passenger under 18?

Section 316.193(4) applies to "any person who is convicted of a violation of subsection (1) and who at the time of the offense was accompanied in the vehicle by a person under the age of 18 years." The same subsection covers a driver with a breath or blood alcohol level of 0.15 or more. For either one, the statute replaces the ordinary first and second conviction ranges in section 316.193(2)(a) with higher ones:

• Fine: $1,000 to $2,000 for a first conviction, $2,000 to $4,000 for a second, and at least $4,000 for a third or later (s. 316.193(4)(a)).
• Jail: up to 9 months for a first conviction and up to 12 months for a second (s. 316.193(4)(b)), instead of 6 and 9 months.
• Ignition interlock: the court "shall order" an interlock on every vehicle the person owns or leases and routinely drives, for at least 6 continuous months on a first offense and at least 2 continuous years on a second (s. 316.193(4)(c)).

Three details in the wording matter. First, the passenger only has to be under 18; the statute does not say the passenger must be the driver's own child or a young child, so a 16-year-old friend counts the same way. Second, this is a penalty enhancement on a DUI conviction, not a separate DUI charge. Third, at trial the jury decides it: Florida Standard Jury Instruction 28.1 tells jurors that if they find the defendant guilty, they "must also determine whether the State has proven beyond a reasonable doubt" that the defendant "was accompanied in the vehicle by a person under the age of 18 years."

How the penalties compare

A third conviction within 10 years of a prior one, and any fourth conviction, are third-degree felonies under section 316.193(2)(b), with or without a passenger; those cases are covered on our felony DUI page. Every other part of a DUI sentence still applies: probation with DUI school, at least 50 hours of community service on a first conviction, vehicle impoundment and the license revocation. The full list is on our page about Florida DUI penalties.

What about the interlock and the license?

Two statutes require the interlock, and they work together. Section 316.193(4)(c) tells the court to order it at sentencing. Separately, section 322.2715(3)(b) tells FLHSMV that before it issues a permanent or restricted license to a person convicted of DUI who was "accompanied in the vehicle by a person younger than 18 years of age," the device must be installed for at least 6 continuous months for a first offense and at least 2 continuous years for a second. If the court does not order it, FLHSMV must require it anyway (s. 322.2715(4)). Under section 316.1937(1), the device is set so the car will not start above 0.025 percent or a level the court sets. Installation and the "P" restriction are explained in ignition interlock after a Florida DUI.

The arrest suspension does not change. Section 322.2615 sets the suspension at the arrest by the test result or a refusal: 6 months for 0.08 or more on a first suspension, or 1 year for a first refusal. It has no separate rule for a passenger. The 10-day deadline to ask for a review applies the same way, as explained in keeping your license within 10 days of a DUI arrest.

How does the case move here, step by step?

1. The stop and arrest. Because the higher penalties depend on the passenger's age, the officer's report and any video are where that fact is first recorded. Write down who the passenger was and who took the child home that night.
2. Testing and the license. The breath, urine or blood request, the warnings and the 10-day permit work as in any DUI (s. 316.1932(1)(a); s. 322.2615(1)).
3. The charge. The State Attorney files the DUI in county court. For the higher penalties to apply, the passenger under 18 must be proven to the jury beyond a reasonable doubt (instruction 28.1). In Palm Beach County, the State Attorney's County Court Division handles misdemeanors and DUI intake.
4. Which courthouse. In Palm Beach County, Administrative Order 4.603 assigns county criminal cases to four regional courthouses; south county cases, including Boca Raton and Delray Beach, go to the South County Courthouse in Delray Beach. Broward's county criminal judges sit at the Central Courthouse in Fort Lauderdale and in Hollywood, Plantation and Deerfield Beach. Miami-Dade's County Court Criminal Division and the Martin County Courthouse in Stuart hear the cases in those counties. More detail is on our Palm Beach County courts page.
5. Programs. The Palm Beach County State Attorney's first-time DUI program lists among its eligibility criteria "No cases involving minor children / animals in Defendant's vehicle," while also saying all cases are "evaluated on an individual, fact-specific basis." The program is explained in the Palm Beach County first-time DUI program.
6. Resolution or trial. The case ends in a negotiated resolution, a dismissal, or a trial before six jurors (s. 913.10). What happens at trial is covered in what happens at a DUI jury trial in Palm Beach County.

What changes the answer?

• The passenger's age on the date of the offense. The statute uses "under the age of 18 years" at the time of the offense (s. 316.193(4)). A passenger who had turned 18 is outside it.
• The breath or blood level. A reading of 0.15 or more triggers the same subsection on its own, and also bars a plea to a lesser offense (s. 316.656(2)(a)). The plea bar is written for test results; it does not mention passengers.
• Prior convictions. A second conviction within 5 years brings at least 10 days in jail (s. 316.193(6)(b)), and a third within 10 years is a felony. Out-of-state DUI convictions count as priors (s. 316.193(6)). See repeat DUI offenses.
• A crash. If the child or anyone else was injured, section 316.193(3) can raise the charge to a first-degree misdemeanor or a felony; see how damage or injury changes a DUI charge.
• Proof of the passenger's age. The State must prove it beyond a reasonable doubt to the jury (instruction 28.1). The report, any video, and records of who the passenger was are the evidence.
• Other charges. This page covers the DUI statutes only. If the charging paperwork lists any other count, bring it to a lawyer right away, because each count has its own elements and penalties.

A worked example

For example, take a hypothetical mother with no record who is stopped in Boynton Beach on the way home from a birthday party with her 9-year-old in the back seat. She blows 0.11, and her sister comes to pick up the child. If she is convicted of a first DUI, the passenger takes the fine range from $500 to $1,000 up to $1,000 to $2,000, the jail limit from 6 to 9 months, and makes an interlock of at least 6 continuous months mandatory, both through the court order and through FLHSMV before any new license. Her arrest suspension is still the 6 months any first 0.08 case carries, and she still has 10 days to request a review. Because the written eligibility criteria of the Palm Beach County first-time program exclude cases with minor children in the vehicle, the discussion turns to the evidence, any motions, and whether the case should be tried. The person and facts are invented to show how the statutes combine, not a client's case or a prediction.

Common mistakes people make

• Assuming the passenger rule only covers young children; it covers anyone under 18.
• Thinking the passenger changes the license suspension at the arrest; it changes the sentence after a conviction.
• Missing the 10-day review deadline while focusing on the child's situation.
• Forgetting that the interlock is required twice over, by the court and by FLHSMV before reinstatement.
• Discussing the night with other parents or on social media before speaking with a lawyer.
• Ignoring a second count on the charging paperwork because the DUI seems like the main problem.

What to do this week

1. Find the notice of suspension and count 10 days from its date.
2. Write down who the passenger was, the passenger's date of birth, and who picked the child up.
3. Read the citation and charging papers for every count listed.
4. Note the breath or blood result shown on the paperwork.
5. List every vehicle titled in your name, since the interlock goes on vehicles you own or lease and routinely drive.
6. Book a consultation before day 10 and bring every paper you were given; our first week checklist lists the rest.

Frequently asked questions

Is a DUI with a child in the car a felony in Florida?

Not by itself. Under section 316.193(4), a first or second DUI with a passenger under 18 stays a misdemeanor with higher fines, longer maximum jail and a mandatory interlock. A DUI becomes a felony for other reasons, such as a third conviction within 10 years, a fourth conviction, or a crash causing serious bodily injury.

Does the child have to be mine?

No. The statute refers to being "accompanied in the vehicle by a person under the age of 18 years." It does not mention the passenger's relationship to the driver.

Can the judge skip the interlock?

Section 316.193(4)(c) says the court "shall order" it, and section 322.2715(4) makes FLHSMV require it if the court does not. Section 322.2715(1) allows consideration of a documented medical condition that would keep the device from working normally.

Does a passenger under 18 change DUI school or community service?

Not under the statute's wording. DUI school, monthly reporting probation and at least 50 hours of community service on a first conviction apply to every DUI conviction (s. 316.193(5), (6)(a)). Where to take the course is in DUI school in Palm Beach and Broward County.

Can the case still be reduced to reckless driving?

The plea bar in section 316.656(2)(a) applies to a test result of 0.15 or more, not to passengers. Whether a reduction is realistic depends on the evidence and the prosecutor; see can a DUI be reduced to reckless driving.

What happens to the car?

As with any DUI conviction, the court must order impoundment or immobilization as a condition of probation, 10 days on a first conviction, with exceptions such as a family with no other means of transportation (s. 316.193(6)(a), (g)). See what happens to your car after a Florida DUI.

How can Mr. Mead help?

Mr. Mead has more than three decades of criminal defense in South Florida. He can review the report, the video and the test paperwork with you, explain how the passenger allegation changes the possible sentence, and handle the license review and the court case in Palm Beach, Broward, Miami-Dade or Martin County. Every case is different, and no result can be promised. The consultation is free, and you can call 24 hours at (561) 362-6677.

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